Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 3) [2018] FCA 1395

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 3) [2018] FCA 1395 File number: NSD 1143 of 2017

Judge: WIGNEY J

Date of judgment: 12 September 2018

Catchwords: INDUSTRIAL LAW – pecuniary penalty – where first respondent breached s 340 Fair Work Act 2009 (Cth) – single contravention – consideration of appropriate quantum of pecuniary penalty – where contravention considered to be serious, but not flagrant or deliberate – where seriousness of contravention mitigated by circumstances of contravention – where first respondent had good industrial record – where it was unlikely that even the maximum penalty would provide specific or general deterrence – appropriate quantum of civil penalty INDUSTRIAL LAW – whether declaration of contravention should be made under s 21 Federal Court Act 1976 (Cth) – where parties agreed that a declaration should be made – consideration of whether the making of a declaration is appropriate – where appropriate case for making a declaration that first respondent contravened s 340 Fair Work Act 2009 (Cth)

Legislation: Building and Construction Industry (Improving Productivity) Act 2016 (Cth), s 54 Crimes Act 1914 (Cth), s 4AA Fair Work Act 2009 (Cth), ss 12, 54, 207, 208, 209, 336, 340, 361, 539, 546, 550, 570, 793, Part 3-1 Federal Court of Australia Act 1976 (Cth), s 21 Code for the Tendering and Performance of Building Work 2016 (Cth)

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) (2010) 199 IR 373; [2010] FCA 977 Australian Competition and Consumer Commission v Apple Pty Ltd [2012] FCA 646 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540; [2015] FCA 330 Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (2007) ATPR 42-140; [2006] FCA 1730 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301; [2005] FCA 265 Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) (2011) 279 ALR 609; [2011] FCA 382 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Securities and Investments Commission v GE Capital Finance Australia, in the matter of GE Capital Finance Australia [2014] FCA 701 Australian Securities and Investments Commission v Southcorp Ltd (No 2) (2003) 130 FCR 406 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 Construction, Forestry, Mining and Energy Union v State of Victoria (No 2) [2013] FCA 1034 Finance Sector Union v Commonwealth Bank of Australia (2005) 224 ALR 467; [2005] FCA 1847 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Markarian v The Queen (2005) 228 CLR 357 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Plancor Pty Ltd v Liquor, Hospitality and Miscellaneous Union (2008) 171 FCR 357; [2008] FCAFC 170 Ponzio v B & P Caelli Constructions Pty Ltd (2007) 158 FCR 543; [2007] FCAFC 65 Re Chemeq Ltd; Australian Securities and Investments Commission v Chemeq Ltd (2006) 234 ALR 511; [2006] FCA 936 Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 Re HIH Insurance Ltd (in liq) and HIH Casualty and General Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80; [2002] NSWSC 483 Sayed v Construction, Forestry, Mining and Energy Union (2016) 239 FCR 336; [2016] FCAFC 4 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277 Trade Practices Commission v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 Trade Practices Commission v CSR Ltd [1990] FCA 762; (1991) ATPR 41-076 Wong v The Queen (2001) 207 CLR 584